Web Accessibility Lawsuits Set to Increase Under Trump

In the Middle Ages, persons with disabilities were considered “cursed” and often shunned or even put to death. Today, however, we have come to understand the medical causes for disabilities that arise from complications in the birthing process or due to genetic abnormalities. Modern man is, on the whole, better educated on disabilities, and therefore less prejudiced against those who have them—for whatever reason.

As awareness has increased, so too have efforts been made to better accommodate persons with physical or mental disabilities, including difficulties with speech and/or learning. The Americans with Disabilities Act (ADA), Title III thereof, strictly prohibits any discrimination made on the basis of a disability.

Originally, the ADA focused on physical venues, particularly areas of public accommodation. These are spaces and businesses that are generally open to the public, and fall into one of 12 categories as described in the ADA. Examples include schools, day care facilities, recreation venues, movie theaters, restaurants, and doctors’ offices. Under the legislation, new buildings are required to comply with the standards set in the ADA, as are those that are being renovated. This extends to areas that exist as commercial facilities as well.

The Digital Landscape

As the world has moved from the physical to the digital, there has been an increasing number of difficulties. Businesses are no longer restricted to brick and mortar (physical) shops.

In fact, almost every company has an online presence. Some are built almost solely as an online business, most generally in the form of ecommerce sites.

While those entities that exist both on the street and on the web typically comply with the ADA Standards in terms of their physical venues, the vast majority fail to do so online.

Part of the difficulty lies in the lack of clear guidelines for websites in the ADA. Without these guidelines in place and the resultant lack of relevant definitions, most websites haven’t been able to successfully translate the requirements for physical venues into requirements for online sites.

Despite there being no clearly defined translation of the ADA Standards, judges generally side with plaintiffs that make a case for websites to be held liable to those same standards. This has created an opportunity for inconsistent litigation, wherein lawyers individually attempt to fill the void.

Recent Examples

There have been several examples over the past few months of court cases that were ruled in favor of such plaintiffs. Here are three for your consideration:

In the case of Lucia Marett vs. Five Guys Enterprises LLC, the court ruled that the law—as based on the ADA Standards—does indeed apply to websites as well as to physical venues. The ruling insisted that websites are equally accountable to ensure reasonable measures of accommodation for users with disabilities. This was largely brought about by showing that websites are an extension of the business venue—be it public accommodation or a commercial facility. As such, the court ruled, the same regulations ought to be applied. The ruling was something of an outlier at the time, but it has set a precedent for further lawsuits of a similar nature.

Gorecki vs. Hobby Lobby Stores, Inc was one of these cases. It had some broad implications for future cases as well. For example, Hobby Lobby based their primary grounds for contention on primary jurisdiction and due process. Their main argument was that there were no actual regulations set in stone that businesses would be legally bound to comply with. However, the district court swept these grounds aside, upholding their decision. The court made their ruling based on Title III of the ADA, stating that full and equal enjoyment should be the standard maintained by all public businesses—both in their physical venues and their websites.

Carlos Gil vs. Winn-Dixie Stores, Inc (Civil Action Number 16-23020)

In the Civil Action lawsuit of Carlos Gil vs. Winn Dixie Stores, Robert Scola, the US District Judge, ruled that Winn-Dixie’s website should be considered a place of public accommodation, and was therefore liable to comply with the ADA Standards as such. Judge Scola awarded attorneys’ fees, as well as issuing injunctive relief. This included the requirement that Winn-Dixie implemented an improved web accessibility policy to ensure that the website conformed to the WCAG 2.0 criteria. Furthermore, any third-party retailers that interacted with Winn-Dixie’s website were also required to conform to the same criteria. This was to ensure that users with disabilities were not only able to interact with the Winn-Dixie site without difficulty or discrimination, but that they would be able to interact with the company’s affiliates’ sites in the same manner as well.

From an examination of the first to the most recent of these court cases, one can deduce reasonable suggestions for the best practices of interpreting requirements for website accessibility.

Target 2008

There is one more case that we would like to briefly overview, this one from 2008—prior to motions for the suggested (now inhibited) implementations planned by the DOJ.

The Target retail chain came under scrutiny in 2008 for being inaccessible to users with vision impairments. At the time, measures for improving website accessibility to those with impaired vision or even blindness was a relatively new technology, in the form of a code that could be embedded.

This code is readable by software that allows visually impaired users to experience a vocal description of page elements and content, enabling them to make use of online resources. Similar software can be used by those with learning disabilities such as dyslexia, which makes reading online sources difficult. Furthermore, links can also be used to allow visually impaired users to navigate the pages of a website by using their keyboard rather than their mouse.

Although Target never admitted that their website was ever inaccessible to those with visual impairments, or that they were in violation of the ADA Standards (or any other law), the court ruled against them. The company was made liable to pay $6 million in settlements to California residents, $90,000 for certification and one year’s worth of monitoring by the National Federation of the Blind (NFB). They were also made liable of $40,000 per year thereafter for monitoring, and training for all affiliated website developers by the NFB at a maximum cost of $15,000 per session. Furthermore, Target also had to make a donation of $20,000 to the California Center for the Blind on behalf of Bruce Sexton Jr., the primary complainant.

WCAG 2.0 AA

The Web Content Accessibility Guidelines (WCAG) was originally published as a W3C Recommendation in May 1999. WCAG 2.0 succeeds this document, and attempts to ensure a more accessible web by presenting a range of recommendations.

The guidelines defined in WCAG 2.0 are designed to ensure that content available on the web is accessible to users with disabilities. These include sight impairments (low vision and blindness), hearing impairments (hearing loss and deafness), cognitive limitations, learning disabilities, speech disabilities, photosensitivity, and limited movement, as well as any combination of two or more of these. By following the guidelines presented in WCAG 2.0, websites are not only made more accessible to users with disabilities but the general public as well.

Although the success criteria provided by WCAG 2.0 are written in the form of testable statements, which are not technology-specific, there are separate (affiliated) documents that do provide a translation of the criteria for specific technologies as well as in general. Previously, one had only to comply with either WCAG 1.0 or 2.0 (or both, insofar as it is possible to do so). However, W3C now recommends that new as well as updated website content comply specifically with WCAG 2.0. Website accessibility policies—such as the one required by the injunctive relief in the Carlos Gil vs. Winn-Dixie Stores, Inc—are also recommended to reference WCAG 2.0.

ADA Standards and the DOJ

The Department of Justice (DOJ) is responsible for issuing the ADA Standards. In the Gorecki vs. Hobby Lobby Stores, Inc case, Hobby Lobby based much of their contention defense on the fact that the DOJ has yet to give any clear indication of how the application of ADA Standards ought to be translated from physical venues to websites.

As we saw in the case study above, the court over-ruled this argument. However, the DOJ has recognized its importance and responsibility in devising or promoting a concrete set of web accessibility regulations, to ensure that the ADA Standards are upheld on every platform and that users with disabilities are suitably protected. To this effect, the DOJ has made promises to adopt WCAG 2.0 AA as their official standard. This change is expected to take effect in 2018.

There is much debate as to whether or not the DOJ ought to have done so sooner. Doing so may potentially have eliminated the unclear regulations for website accessibility as they exist today, thus reducing the number of complaints filed against non-compliant businesses and their websites.

In a sense, it is perhaps largely due to the DOJ’s failure to act sooner that we currently have such inconsistent legislation. It is hoped that, with the promised implementation of the WCAG 2.0 AA, such cases will be drastically reduced.

Federal Agencies

Under President Trump, federal agencies have—for the first time—prioritized rulemaking agendas by dividing all proposed regulations into one of three categories:

Priorities for the next 12 months

Actions that are not expected to be completed within the coming year

An inactive list of regulations that have not been withdrawn formally, but have no defined place in the agency’s planned rulemaking for the indefinite future.

This is primarily due to an executive order signed by President Trump on January 30. As a result of this executive order, all actions pertaining to the introduction or amendment of regulatory standards are effectively curtailed.

Executive branches in charge of setting regulations in place, or amending existing regulations, are to be held financially responsible for costs involved in implementing these regulations, whether sourced publicly or privately. Essentially, this entails that the organizations responsible for any particular regulation are also held personally responsible not only for managing the expenditure relating to budget, but also for the costs of implementing and enforcing these regulations.

As a prerequisite for introducing any new regulation, or the amendment of an existing one, President Trump’s executive order requires that all branches to identify at least two existing regulations that are to be eliminated or “replaced” by the new. While there is provision for cases where it is not legally possible to do so, it is to be expected that for any regulation to be passed at least two will have to fall away.

Furthermore, the cost of newly implemented or amended regulations is expected to remain “no greater than zero” for the fiscal year 2017. This is once again to be attained by eliminating (and therefore redirecting) the funds for two previous regulations. For example, in order to impose a $1 Billion expenditure regulation, the federal branch wishing to implement the regulation must be able to replace two existing regulations that have a combined cost of no less than $1 Billion so as to cover the new regulation’s costs.

The full implementation of the new executive order may be viewed in its original form (and in full) by following the link provided above.

Implications of President Trump’s Executive Order for Web Accessibility

The shifting of priorities and the masked intentions of our federal government under President Trump is, and will likely continue to, create a volatile and litigious environment, especially in the current climate of regulatory uncertainty.

Recently, in compliance with the above-mentioned executive order, President Trump ruled that the intended implementation of WCAG 2.0 AA by the DOJ be moved to the third categorization—inactive. This means that a movement began during President Obama’s term, and which has been in motion for nearly eight years now, is unlikely to come to fruition. The proposed 2018 change of regulation has been indefinitely postponed, and it is not known whether we are likely to see any change for the better anytime soon.

There are a few regulations that have been exempted from the executive order, namely those relating to the military, national security, foreign affairs, agency organization, management, and personnel. The Director of the Office of Management and Budget is also given full-power to add any additional exemptions he deems fit.

However, this does not bode well for the DOJ. The list of exemptions does not apply in any way to the state and local-level governance which the DOJ works with. This means that, in order to implement the regulations under Title III of the ADA as has been planned and put in motion since 2010, the DOJ will be forced to identify two prior regulations that can be eliminated.

Unfortunately, this means that—for so long as the executive order is in place—it is highly unlikely that these planned regulations will be implemented. There are no likely candidates for replaceable regulations at present. Even if an exemption were made (which is highly unlikely) that allowed the DOJ to adopt the WCAG 2.0 AA without having to eliminate any prior regulations, the organization would still be expected to fully manage and fund the new implementation with a zero dollar budget.

For all intents and purposes, the movement—which has been seven years in the works—has effectively been stopped dead in its tracks.

Continued Difficulty

A major implication of the prevention of the DOJ’s previously intended implementation of the WCAG 2.0 AA as a concrete regulation guideline for user accessibility is that the current tsunami of lawsuits is likely to continue. In fact, they may even get worse.

Without a clear-cut set of rules to follow, website owners are largely implementing accessibility for users with disabilities (and users in general) through a means of trial and error. While court rulings such as those in the case studies discussed above are assisting in creating local guidelines, the lack of proper regulation opens all websites to come under scrutiny without proper precedents to measure against.

New regulations in the field would most certainly be beneficial for all parties involved. As the courts become increasingly occupied with accessibility cases, legal resources are being expended that perhaps ought to be focused on other issues—such as criminal activity. Without a proper resource or guideline to base their website designs on, businesses remain open to accusations without any clear-cut means of defense or suggested implementations to alleviate the situation. And, of course, users with disabilities will continue to struggle with using online resources if there are no official means of granting improved accessibility to them.

Moving Forward

At present, there seems very little website owners can do to protect themselves from lawsuits. However, there is a definite recommendation that we can make in lieu of proper regulation standards.

We strongly urge that all website owners and managers do research on the current standards as described by the ADA, as well as those of the WCAG 2.0 Levels A and AA. By increasing awareness of these regulation standards, and encouraging affiliated website developers to do so as well, it is possible to avoid the legislative mess that President Trump has created for website owners and users alike.

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